Hidayath K vs The State Of Kerala on 21 June, 2013

[Cites 15, Cited by 3]

Kerala High Court

Hidayath K vs The State Of Kerala on 21 June, 2013

The question of law involved in this Writ Petition is whether an order of detention under Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as the KAAPA) can be issued without recourse to passing an order under Section 15 of the KAAPA.

2. Anwar, the son of the petitioner, was ordered to be detained as per the order issued by the second respondent under Section 3(1) of the KAAPA. Anwar was arrested on 15.9.2013 in execution of the order of detention. The procedural formalities were completed regarding approval by the W.P.(C) No.31179/2013 2 Government under Section 3(3) of the KAAPA. The Advisory Board opined that there is sufficient cause for the detention of Anwar. The Government confirmed the order of detention as provided under sub-section (4) of Section 10 of the KAAPA. In this Writ Petition, the order of detention is under challenge. The learned counsel for the petitioner raised three points for consideration.

(i) Before passing an order of detention under Section 3(1) of the KAAPA, the second respondent should have resorted to the proceedings under Section 15(1) of the KAAPA.

(ii) The grounds of detention and copies of the relevant documents were not supplied within 5 days of detention as provided under sub-section (2) of Section 7 of the KAAPA.

W.P.(C) No.31179/2013 3

(iii) Proceedings under Section 107 of the Code of Criminal Procedure were initiated against the detenu and therefore, there was no justification for passing an order of detention under Section 3(1) of the KAAPA.

3. The order of detention was issued against the detenu considering him as a known rowdy as defined under Section 2(p)(iii) of the KAAPA. The detenu was involved in nine criminal cases. It is submitted that at the time when the Advisory Board considered the matter, the detenu was acquitted in two cases and even thereafter he was acquitted in another case. The detaining authority was satisfied that with a view to prevent the detenu from committing any anti-social activity within the State of Kerala in any manner, it was necessary to make an order directing him to be detained. The subjective W.P.(C) No.31179/2013 4 satisfaction was arrived at on the basis of the materials available before the second respondent. There is no dispute that the cases in which the detenu is involved would be sufficient to treat him as a known rowdy under the KAAPA.

4. Under Section 3(1) of the KAAPA, the Government or an officer authorised under sub-section (2), may, if satisfied on information received from a Police Officer not below the rank of a Superintendent of Police with regard to the activities of any known goonda or known rowdy, that with a view to prevent such person from committing any anti-social activity within the State of Kerala in any manner, it is necessary so to do, make an order directing that such person be detained. When an order is made under Section 3(1) by the authorised officer, he is bound to report the matter to the Government and the Director General of W.P.(C) No.31179/2013 5 Police, Kerala, as provided in sub-section (3) of KAAPA forthwith. The order has to be approved by the Government or by the Secretary, Home Department, if authorised, within twelve days, excluding public holidays, from the date of detention. Within three weeks from the date of detention of a person, the Government has to place the matter before the Advisory Board. The Advisory Board shall submit, within nine weeks, a report containing its opinion as to whether or not there is sufficient cause for the detention of the person concerned. If the Advisory Board is of the opinion that there is sufficient cause for the detention of the person, the Government may confirm the detention order. If the report of the Advisory Board is that there is no sufficient cause for the detention of the person, the Government shall revoke the detention order and release the person forthwith. A detention order under Section 3(1) may at W.P.(C) No.31179/2013 6 any time be revoked or modified by the Government under Section 13 of the KAAPA.

5. Section 15 of the KAAPA reads as follows :

"15. Power to make orders restricting the movements of certain persons:-

(1) The District Magistrate or a Police Officer of and above the rank of Deputy Inspector General having jurisdiction, if satisfied on information received in respect of a known goonda or known rowdy, after having given him an opportunity to be heard by notice served on him or pasted at his ordinary place of residence, if any in Kerala, that he is indulging in or about to indulge in or likely to indulge in anti-social activities and with a view to prevent him from so acting at any place within the jurisdiction of such Magistrate or officer, may make an order, -

(a) directing that, except insofar as he may be permitted by the conditions made in the order, he shall not visit any such area or place as may be specified in the order, for a period not exceeding one year ; W.P.(C) No.31179/2013 7

(b) requiring him to report his movements within the State, in such manner, at such times, and to such authority or person as may be specified in the order, for a period not exceeding one year :

Provided that a copy of the order along with the grounds for issuing such order shall be communicated to the Government through the Director General of Police.

(2) Any person aggrieved by an order issued under sub-section (1) may represent before the Advisory Board within fifteen days of the date of service of the order and the Board on receipt of such representation, consider the same, and after enquiring into the facts and circumstances in such manner as it may deem fit, shall within thirty days of the date of the receipt of such representation, annul, amend or confirm the order, either in part or in full.

(3) The Government or the authority which issued the order under sub-section (1) may, on its own motion, annul or amend the order at any time either in part or in full.

(4) Any person violating an order under sub-

section (1) shall be liable to be punished with imprisonment for a term which may extend to three W.P.(C) No.31179/2013 8 years.

(5) If an order issued under sub-section (1) above has ceased to have effect for any reason, a new order under the said sub-section may be issued against the same person, if he continues to be a person falling within the definition of known rowdy or known goonda as given in Section 2(o) or Section 2(p) and if, after such cessation, he has again involved, in an offence of the nature described in Section 2(o) or Section 2(p) at least in one instance."

6. The scheme of Section 15 is quite distinct and different from the scheme under Sections 3 to 13 of the KAAPA. An order of detention under Section 3 is intended with a view to prevent any known goonda or known rowdy from committing any anti-social activity within the State of Kerala. An order under Section 15(1) would be issued on satisfaction that a known goonda or known rowdy is indulging in or about to indulge in or likely to indulge in anti-social activities ; and that with a view to W.P.(C) No.31179/2013 9 prevent him from so acting at any place within the jurisdiction of the District Magistrate or the Police Officer concerned, it is necessary to issue an order under Section 15(1). The gravity and magnitude of the activities of a known goonda or known rowdy which is sought to be prevented are higher in the case of Section 3(1) and not so higher in the case of Section 15(1). The acts sought to be prevented under Section 15(1) are within the jurisdiction of the Magistrate or the officer concerned while the activity sought to be prevented under Section 3(1) of the KAAPA is within the State of Kerala as such. An order under Section 15(1) would be resorted to when the Magistrate or officer concerned is satisfied that if a direction to the person concerned not to visit the area or place within the jurisdiction of the Magistrate or officer, as the case may be, for a period not exceeding one year would be sufficient to meet the situation. On W.P.(C) No.31179/2013 10 the other hand, if the Government or the authorised officer is satisfied that to prevent such person from committing any anti-social activity within the State of Kerala, detention of the person concerned is necessary, an order of detention under Section 3(1) can be issued. It is the subjective satisfaction of the authority concerned to take resort to either Section 15 or to pass an order of detention under Section 3(1) that matters. It cannot be said that before passing an order of detention under Section 3 (1) by the Government or the officer authorised, the District Magistrate or the Police Officer concerned should first pass an order under Section 15(1) and that an order under Section 3(1) can be issued by the Government or the authorised officer only if an order under Section 15(1) is not found sufficient to prevent the anti-social activity of the person concerned. In other words, it is not a pre-requisite that an order under Section 15(1) should W.P.(C) No.31179/2013 11 be passed before issuing an order of detention under Section 3 (1). The contention put forward by the petitioner in this regard is without any merit.

7. The contention of the petitioner that the grounds of detention and the documents relied upon in the grounds of detention were not supplied to the detenu as provided under Section7(2) of the KAAPA is incorrect. The learned Government Pleader produced for our perusal copy of the records which would show that the detenu had received under his signature the grounds of detention and the relevant documents.

8. The learned counsel for the petitioner relied on the decision in Rekha Gopakumar vs. State of Kerala (2012(4) KLT 990) and contented that proceedings under Section 107 of W.P.(C) No.31179/2013 12 the Code of Criminal Procedure having been initiated against the detenu, there was no justification for passing an order of detention under Section 3(1) of the KAAPA. It is stated in the order of detention that though proceedings were initiated against the detenu under Section 107 of Crl.P.C., even thereafter he continued to indulge in criminal activities with added force. In the counter affidavit, it is stated that after the initiation of the proceedings under Section 107 of Crl.P.C., the detenu involved himself in the commission of four crimes. In Rekha Gopakumar vs. State of Kerala (2012(4) KLT 990), a Division Bench of this Court held that the question whether the proceedings under Section 107 of Crl.P.C. are sufficient or not is a question of fact depending upon various factors. In Rekha Gopakumar's case, though a report was made indicating that proceedings under Section 107 of Crl.P.C. had been initiated against the detenu, the W.P.(C) No.31179/2013 13 authorised officer did not consider the same at all. In the present case, the fact that proceedings were initiated against the detenu under Section 107 Crl.P.C. was taken into account by the second respondent and he was satisfied that recourse to Section 107 of Crl.P.C. would not be enough in the present case since the detenu committed four other crimes thereafter.

In view of the rejection of the contentions put forward by the learned counsel for the petitioner as mentioned above, the Writ Petition is liable to be dismissed. Accordingly, the Writ Petition is dismissed.

K.T.SANKARAN JUDGE P.UBAID JUDGE csl W.P.(C) No.31179/2013 14 K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.

---------------------------------------- W.P.(C) No.31179 of 2013

----------------------------------------- Dated this the 20th day of January, 2014 O R D E R W.P.(C) No.31179/2013 15 K.T.Sankaran, J.

The learned Additional Director General of Prosecution submitted that going by the copy of the Writ Petition furnished to the respondents, the detenue is the petitioner Hidayath whereas the real detenue is Anwar. In the original of the Writ Petition, it is stated that the detenue is the son of the Writ Petitioner Hidayath. The petitioner shall furnish a correct copy of the Writ Petition to the learned Additional Director General of Prosecution and file a memo to that effect within three days.

Post on 5th February, 2014.

K.T.SANKARAN JUDGE M.L.JOSEPH FRANCIS JUDGE csl

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